REHMAN WAJID UR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 46/2019

[2022] HKCFI 2158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 46 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;    or
	consideration of the documents and the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of Pakistan who last entered Hong Kong illegally on 3 June 2010 and subsequently surrendered to the Immigration Department on 7 July 2010 when he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by his foster father over some family dispute, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis plus addition basis of fear of harm from the Pakistani government and authorities due to his support of the militant separatist organization Jammu Kashmir Liberation Front (“JKLF”) which fought for the independence of Kashmir free from the administrative rule of India or Pakistan. He was subsequently being released on recognizance pending the determination of his claim. 

2.  The Applicant was born in Village Dherra, District Rajoy, Jammu Kashmir, and as a small child he was taken by his foster parents to live in Jehlum, Punjab, Pakistan where he subsequently obtained his Pakistani nationality.

3.  In 1992 he left his foster parents to move to Islamabad to stay with his friend and to work there, and in 2002 he departed Pakistan for China and then sneaked into Hong Kong when he was later arrested by police and was repatriated to Pakistan in 2004.

4.  In 2005 he was accused by his foster father of having a relationship with his foster father’s daughter of which he had denied but which led to mistrust and hostility between him and his foster father.

5.  Due to his past connection with Kashmir, the Applicant in 2006 started to support JKLF in their fight for an independent state of Kashmir free from the administration rule of India or Pakistan, but never had any direct involvement in their activities other than persuading other people to support their fight, nor had he as a result ever received any adverse attention or treatment from the Pakistani authorities.     

6.  By 2009 his relationship with his foster father deteriorated to the extent that his father had made death threats against him, and also after hearing from his friend in early 2010 that the Pakistani authorities had conducted a raid in the building where he lived looking for JKLF members that the Applicant felt it was no longer safe for him to remain in Pakistan, and so on 4 March 2010 he tried to depart the country for China but met with difficulty getting through immigration until his friend had paid a bribe to the officers, and from China he later sneaked into Hong Kong again and later raised his torture claim, and after it was rejected by the Immigration Department, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 29 May 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 28 September 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his foster father or the Pakistani authorities upon return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any adverse interest of the Pakistani authorities in him arising from his alleged support of JKLF other than his own groundless speculation, nor is there any real intention of his foster father to seriously harm or kill him over what was essentially a private domestic dispute between the two of them without any official involvement that state protection would be available to the Applicant if resorted to upon his return to Pakistan, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 204 million people spread across a vast territory of more than 770,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other area away from his home district in large cities such as Karachi or Islamabad where it would be difficult if not impossible for him to be located.   

9.  On 20 October 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 21 September 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 21 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found inconsistencies discrepancies and convolutions in the Applicant’s evidence as to his claim that it doubted the credibility of his claimed fear of harm from his foster father or the Pakistani authorities that caused him to flee his country for Hong Kong to seek non-refoulement protection, and that in the absence of any official involvement that state/police protection would be available to him upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part of the country without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.     

11.  On 7 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That no legal representation or assistance was provided to him for his appeal before the Board;

(2)  That the Director was wrong in assessing that state protection would be available to the Applicant upon his return to his home country despite evidence from him that the local police never provided him with assistance or lodged any FIR for him after he had reported to them of the threats from his foster father;

(3)  That the Director had quoted various COI which supported the Applicant’s assertions with regard to state protection but stated that the situation in Pakistan had improved without giving proper or sufficient explanation how the balancing exercise was conducted with regard to those contrasting COI;

(4)  That the Board failed to apply high standards of fairness in rejecting the credibility of the Applicant’s claim despite all the evidence and documents provided by him in support of his claim that the decision was unfair unreasonable and illogical; and

(5)  That the Director had merely adopted a formulaic and biased approach in assessing the Applicant’s claim by relying on the same COI which supported his assertions of the overall corruption in Pakistan and ineffectiveness of the police but at the same time used the same COI to show reforms in the police in Pakistan to rule against the Applicant’s claim.   

12.  For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

13.  The Applicant already had the benefit of legal representation from DLS in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without any difficulty. As such I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

14.  As for his complaints under the other grounds, I find them to be just some vague and bare assertions of the Applicant without details or particulars or elaboration as to how they apply to his case or in what way did the Director or the Board fail to consider the relevant COI properly or to apply high standards of fairness in their assessment of his credibility or how they apply a formulaic approach in their determination of his claim. As such I do not find any of these grounds reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant who also failed to attend the hearing of his application without explanation, I do not find any reasonably arguable basis for his intended application either.  

15.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the Applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16.  The fact is that it has been correctly established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.        

17.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1